New York Employment Lawyer Blog

A recent article in the The New York Times reported on a U.S. Supreme Court decision regarding retaliation in the workplace. The Court held that a provision of the Civil Rights Act of 1866, Section 1981, permits the filing of workplace retaliation claims. Workplace retaliation claims arise when an employee makes complaints to their employer about instances of discrimination in the workplace and the employer responds with an adverse action. It was also held that this law covers both Federal and private employees.

This decision is a significant step in favor of employees because it provides recognition of the fact that employers cannot “punish” those who speak out against discriminatory acts in the workplace.

In a recent blog entry, we discussed the prevalence of gender discrimination on Wall Street. This was further demonstrated in a story that was recently covered in many news outlets regarding a multi-million dollar class action settlement involving Citigroup.

As Portfolio.com reports, the action was brought on behalf of female financial advisers who had worked in Smith Barney retail brokerage branches. The nature of the claim was that females were treated differently than males in terms of compensation and business opportunities, which is a clear act of gender discrimination.

The New York Times recently reported on the transmittal of e-mails circulated to and from the e-mail accounts of at least 20 secret service supervisors which included racially insensitive remarks.

The ease with which written statements are transmitted through e-mail has resulted in loose and thoughtless material being transmitted that has no place in rational and thoughtful communication in the workplace. The abuse has reached proportions so vast that there is hardly any litigation in which e-mails are not included as exhibitions. If we could point to one specific area that requires greater thought and, in some instances, more detailed supervision, it would be with the freedom with which e-mails are transmitted. There is hardly a case tried in a court where e-mails do not have a material and significant effect.

An recent article in The National Law Journal discussed the fact that 12 geographic Federal circuits have now decided to permit jurors to pose written questions to witnesses during a trial. It appears, however, that although the circuits are permitting this procedure, there are reservations that are shared by some of them. In some instances, several of the circuits have actually requested judges to advise the jurors that this procedure is permitted. The circuits have actually permitted the matter to be decided through the discretion of the judges.

It also appears that, in certain cases, the granting of this power to a jury might well be of help in arriving at a more meaningful result. It is a subject that is certainly worth following and, for ourselves, we look forward to the outcome which can only be determined after the practice has been followed for a period of time. We believe that once the practice is used for a reasonable period of time, the courts and the attorneys practicing in them will be in a better position to judge the efficacy of this procedure.

In a recent article in The National Law Journal, the results of a recent survey revealed differences in the amount of post-law school debt among men and women and those of different races and ethnicities. The survey put forth data stating that women generally are in greater debt than men and that minorities are likely to have larger debt than Caucasian law graduates. One can come to their own individual conclusions regarding this data, but perhaps disparities in hiring after law school among men, women and minorities may force some students to carry law school debt for a longer period of time. It is possible that women and minorities who attain gainful employment shortly after graduating still suffer the effects of a "glass ceiling" in the salaries they are able to earn.

There is no denying that gender discrimination exists in many industries, but nowhere is it more prevalent than on Wall Street. The past 10 years have seen more gender discrimination lawsuits brought by women against financial institutions than any other type of employment discrimination suit. And yet the problem persists.

The high power and high paying jobs on Wall Street are still filled predominately by men. Oftentimes women find it challenging to break into the next level because of the glass ceiling that exists and the inaccurate stereotypes about women that have been perpetuated for many years.

The U.S. Equal Employment Opportunity Commission (EEOC) has reported that the percentage of women in senior positions is lowest in the securities industry. The EEOC further indicated that it is more difficult for women to gain entry into management positions than their male counterparts.

Despite the lawsuits and the statistics reported by the EEOC, the demographics of Wall Street firms have not changed much with respect to women. Women continue to be relegated to lower level, more administrative oriented jobs and are denied the opportunities that men are afforded simply because of their gender.

A recent bill has passed both the U.S. House of Representatives and the United States Senate and is awaiting the signature of the President. This bill represents the intersection of anti-discrimination and human rights laws with that of privacy rights.

According to a recent article in The New York Times, the bill is called the Genetic Information Nondiscrimination Act (GINA) and it will prohibit both employers and health insurers from discriminating against individuals on the basis of their genetic information. This bill has received broad bi-partisan support and has the possible effect of increased public participation in genetic testing and related fields.

The U.S. Supreme Court will address the significant question of whether an employer in an age discrimination suit has the burden of proving that reasonable factors exist that might explain the disparate impact that a business decision has on a group of older employees, or if the burden rests with the employees.

In a case brought by two dozen workers at Knolls Atomic Power Laboratory in upstate New York, 31 employees were terminated using a set of guidelines to evaluate the workers’ skills as well as their amenability to retraining. Thirty of the 31 terminated employees were over the age of 40, the age at which the protections of the Age Discrimination in Employment Act (ADEA) apply. The employees won after a jury trial, but the judgment was overturned by the U.S. Court of Appeals for the Second Circuit.

The Age Discrimination in Employment Act is the law under which the suit was initially brought and it references the reasonable factor test but does not indicate where the burden rests. It would make sense that if the employer wanted to use the reasonable factor concept as a shield, the burden should rightfully rest with them.

The New York Times recently reported that the U.S. Senate fell four votes short of the votes needed to begin consideration of the Lilly Ledbetter Fair Pay Act, named for an Alabama woman who lost her case against the Goodyear Tire and Rubber Company because she had not filed her employment discrimination complaint within six months of the initial instance of the discriminatory acts.

Ms. Ledbetter had often been paid 40% less than her male counterparts and continues to suffer from that pay disparity in her retirement because the disparity has affected her pension and social security payments. It is our hope that this issue may be reconsidered by the next Congress.

A recent article in The National Law Journal entitled, "Hot Year Predicted for ADA Litigation," reflects the fact that the Americans with Disabilities Act (ADA) is currently at a point in which many issues related to it are before the courts. Among the significant issues that relate to the ADA are website accessability and handicapped vehicle accessibility.